Opinion
CIVIL ACTION NO. 4:13-CV-1841
02-12-2014
CLEO CHESTER MCGREW, JR, Plaintiff, v. ROBERT E BELL, Defendant.
OPINION ON DISMISSAL
Plaintiff Cleo Chester McGrew, Jr., a state inmate confined in the Texas Department of Criminal Justice - Correctional Institutions Division's (TDCJ-CID) LeBlanc Unit in Beaumont, Texas, has filed a pro se civil rights suit alleging retaliatory prosecution. (Docket No. 1.) The sole defendant named in the Complaint is Robert E. Bell, Jackson County District Attorney. Plaintiff has also filed a motion to proceed in forma pauperis. (Docket No. 2.)
Under 28 U.S.C. § 1915(g), a prisoner cannot file a civil action in forma pauperis in federal court if, on three or more prior occasions, while incarcerated, he brought an action that was dismissed for being frivolous, malicious, or failing to state a claim upon which relief may be granted. The only exception to this revocation of an inmate's privilege to proceed in forma pauperis is if he is in immediate danger of serious physical harm. Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998).
Plaintiff's present suit is clearly subject to the three-strikes bar under Section 1915(g) because his Complaint does not indicate that he is in any danger and his litigation history reveals that he has previously had at least three cases dismissed as frivolous in the federal courts. See McGrew v. Denton, No. 9:02-cv-0007 (S.D. Tex.) (dismissed as frivolous Jun. 24, 2002); McGrew v. Townsend, No. 9:02-cv-108 (S.D. Tex.) (dismissed as frivolous Sept. 16, 2003); McGrew v. Bell, No. 4:11-cv-1753 (S.D. Tex.) (dismissed as frivolous Jun. 16, 2011).
Accordingly, it is ORDERED that Plaintiff's Motion to Proceed In Forma Pauperis (Docket No. 2) is DENIED and this case is DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(g), subject to refiling with payment of the full $400 filing fee. Any pending motions are further DENIED.
SIGNED at Houston, Texas, this 12th day of February, 2014.
__________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE